This judgment involves two cases brought against Scandlines A/S (Scandlines) by Itella Logistics A/S (Itella) (Case S 16‐08), and by N&K Spedition A/S (N&K) (Case S 7‐08).

Case S 16‐08: Itella

On 18 January 2006, the parties entered into a freight agreement for the period from 1 January 2006-31 December 2008. The standard provisions of the contract stated, among other things, that the North Sea Standard Conditions of Carriage (NSSCC) were applicable to the carriage. Scandlines' transport regulations, such as can be found on the Scandlines website, also referred to the NSSCC both in the introduction and in the section on transport damage. Provisions in the NSSCC that may be relevant to the case are as follows:

8. Delivery

If the Merchant does not take delivery of the Goods within a reasonable time after the Carrier calls upon him or his agent so to do, and in any event within two months of discharge, the Carrier shall be at liberty to store the Goods on behalf of the Merchant at the Merchantʹs risk and expense ... . Such storage shall constitute delivery for the purposes of section III of these standard Conditions. …

CARRIERʹS LIABILITY

10. Basic Liability

The Carrier shall be liable for loss of or damage to the Goods occurring between the time of the hook on and the time of hook off.

The Carrier shall, however, be relieved of liability for any loss or damage if such loss or damage arose or resulted from: … Any cause or event which the Carrier could not avoid and the consequence of which he could not prevent by the exercise of reasonable diligence. …

DESCRIPTION OF GOODS

15. Carrier Responsibility

The Document evidencing the Contract of Carriage shall be prima facie evidence of the receipt by the Carrier of the Goods as therein described in respect of the particulars which the Carrier had reasonable means of checking.

Scandlines' transport regulations state:

Damage ... must be reported immediately to the ferry officer before leaving the ferry. Scandline's responsibilities and liability for damage is determined on the basis of the provisions of the Danish Merchant Shipping Act as well as in accordance with the transport regulations in force at any given time and the provisions in the 'North Sea Standard Conditions of Carriage' ...

Scandlines disclaims all liability for damage and loss that occurs before boarding or after disembarkation as well as during a vehicle's stay in a ferry port.

Scandlines transported a batch of wood pellets from Klaipeda, Lithuania, to Aabenraa on 7‐9 December 2006. The cargo was going to Hårby on the island of Funen. A CMR consignment note was issued for the shipment, stating that the sender was IAB Graanul Invest in Alytus, Lithuania. The recipient was TBJ/SAB Amba, Snave, Hårby. The transport concerned 24,375 kg of wood pellets loaded on trailer LS 5770. An interchange report was prepared on Scandline's standard form. It was dated 5 December 2006 and stated that the trailer was 'LOADED', that it was from Klaipeda, and that it was dirty. A cargo manifesto concerning sailing on 7 December 2006 from Klaipeda to Aabenraa stated that in addition to trailer LS 5770 with the specified unloader Combifragt, there were a number of trailers with the same unloader. Combifragt's driver arrived to pick up the trailer, and discovered that it was empty.

The area where the trailer was left was a fenced area at Aabenraa Harbor right next to the place where the Scandlines ferry arrives. The trailers were driven there by Scandlines after landing through a gate on the east side of the area. There is also access to the area through a western gate. Both gates were locked, but could be opened using a four-digit code that Scandlines gave to the hauliers etc who must pick up trailers. The area was not permanently guarded, but was supervised by a guard patrol. Itella claimed EUR 4,509.38, the value of the wood pellets.

S 7‐08: N&K

The contractual basis for this transport was the same as in Case S 16‐08. The freight agreement, with references to the NSSCC, was entered into on 19 December 2005 for the period of 1 January 2006-31 December 2006. The shipments to which the case relates were made in accordance with CMR consignment notes of 20 July 2006 and 8 February 2007.

According to the CMR consignment note dated 20 July 2006, the first shipment concerned approximately 21 mt of 'frozen pork shoulder boneless' from Borgstedt. The consignment note referred to veterinary certificates with specific dates. The goods were loaded in Padborg on 20 July 2006 on trailer LZ 6714. According to N & K's 'trailer check report' of 21 July 2006, the trailer was fitted with seals. Scandlines' interchange report regarding the same trailer does not state anything about sealing. When the trailer arrived in Klaipedia, the control and veterinary seals had been cut off. The costs due to the missing seals were calculated at DKK 10,632.12.

The second transport concerned just over 21 mt of frozen lard from Hobro to Moscow. For the transport, a CMR consignment note of 8 February 2007 was issued with reference to a veterinary permit for export. According to the consignment note, the trailer was loaded the same day on trailer LD 5571. N&K prepared a 'trailer check report' dated 9 February 2007 in Aarhus. According to the report, the trailer was sealed. Scandlinesʹ interchange report regarding the trailer states that it was fitted with a customs seal (No 94536). The trailer arrived at Scandlines' terminal in Klaipeda on 11 February 2007. The seals were missing. The extra costs incurred, in the form of extra trailer days, extra ferry costs, and hiring a new vet, were calculated at DKK 16,900.

Held: Judgment for Scandlines in Case S 16-08. Judgment for N&K in Case S 7-08.

In both cases, the agreements and regulations of the parties, in particular Scandlines, regarding the receipt and delivery of trailers and the control of their condition must be described as rather imperfect. The basis of the agreement can best be deduced from the way in which the parties practiced their co-operation.

The provision in cl 10 of the NSSCC regarding 'hook on, hook off' may not apply in so far as it is not in accordance with the mandatory provision in s 274 of the Merchant Shipping Act, which is based on art 4 of the Hamburg Rules, and provides as follows:

1. The carrier shall be liable for the goods during the period in which he has the goods in his charge at the port of loading, during carriage and at the port of discharge.

2. The carrier shall be deemed to have the goods in his charge, cf. subsection 1, from the time he has taken over the goods from the consignor or an authority or other third party to whom, pursuant to law or regulations applicable at the port of loading, the goods must be delivered for shipment.

3. The carrier shall be deemed to no longer have the goods in his charge, cf. subsection 1,

1) when he has delivered the goods to the consignee,

2) if the consignee does not take delivery of the goods from the carrier, then when the goods are stored at the expense of the consignee pursuant to the contract or with the law or practice at the port of discharge, or

3) when the carrier has handed over the goods to an authority or other third party to whom, pursuant to law or regulations applicable at the port of discharge, the goods must be handed.

Clause 8 of the NSSCC on delivery is not considered; this provision concerns delay in collection by the shipper, and this is not relevant. In neither of the cases did the shipper demand an on-board bill of lading: see s 294 of the Merchant Shipping Act.

Case S 16‐08: Itella

It must be considered overwhelmingly probable that on arrival at Scandlinesʹ facility in Klaipeda and on boarding, the trailer was loaded with wood pellets, and that it was still loaded at the disembarkation in Aabenraa. It cannot be determined with any certainty at what time from the disembarkation on Saturday morning, 9 December 2006, to Monday morning, 11 December 2006, the contents of the trailer were removed. After arriving in Aabenraa, it was recommended that the trailer remain in the space that Scandlines had made available at the port of Aabenraa. The recommendation was in Itella's interest, as the company could then pick up the trailer at the time that was most economical to it. There are no indications from Scandlines that, by making the space available, it undertook a continued storage obligation, or assumed the risk for trailers parked on the site. The parties' practice here must be equated with the trailer being removed from Scandlines' custody.

Section 274 of the Merchant Shipping Act and art 4 of the Hamburg Rules cannot be assumed to state exhaustively the ways in which goods can be removed from the carrier's custody. Although the provisions of ss 274(2) and 274(3), as it appears from the Maritime Law Committee's Report 1215/1990 on the Carriage of Goods 64, aimed 'as far as possible' to avoid borderline problems, all doubt is not excluded, and the question of the extent of the custody period must in these cases depend on the parties' agreement and common understanding as shown by their practice. Scandlines is therefore not liable for the removal of the wood pellets.

S 7‐08: N&K

It must be considered overwhelmingly probable that the trailers, as stated in N&K's interchange reports, and as confirmed on Scandlines' interchange report regarding trailer LD 5571, were sealed at the handover to Scandlines. The missing seals were found in Klaipeda before the discharge from Scandlines' side.

It must be to the detriment of Scandlines' evidence that the company has not organised firmer procedures for checking seals, etc, and it must be to the detriment of Scandlines that it has not indicated to its customers in freight regulations or otherwise that control of seals, which is absolutely crucial for the execution of certain transports, was done only on request, so that the box on the interchange the report was only filled in when the customer requested it. N&K must therefore prevail.